Party Autonomy and Interim Measures in International Commercial Arbitration

Abstract

Legal regimes differ on the authority of courts and arbitrators to grant interim measures in support of arbitration proceedings. Some arbitration laws authorize both courts and arbitrators to award interim relief (based on the parties’ agreement or otherwise); some laws deny arbitrators such authority, limiting it to the courts; some laws deny the courts such authority once the arbitrators have been selected; while others are unclear whether and under what circumstances courts may make such orders. The fundamental question is an institutional one: Which is the appropriate party to grant interim measures—the court, the arbitration panel, or both?

This paper argues that the principle of party autonomy should determine who has the authority to award interim relief. The argument is twofold. First, empirical examination of contracting practices—what parties actually agree to in their arbitration agreements concerning interim measures—may provide important insights into how authority over interim measures should be allocated. Second, in translating those insights into statutory provisions, drafters and legislators should preserve party autonomy by permitting parties to contract around the statutory provisions, in other words, by making those provisions default rules rather than mandatory rules.